It is well-known that the concept of judicial independence in this country owes its origin to the development of this concept in England. In England for centuries that Monarch was the repository of all powers and the courts set up by him were accountable to none except him, he being an integral part of the system of administration of justice. This was a purely executive arrangement. However, during the 17th century things began to change following a clash between the Monarch and the Parliament, each vying for supremacy. In this tussle for supremacy both sought cover under law which brought the judiciary into sharp focus since it alone was competent to demarcate the functional boundaries between the privileges of the Crown and those of the Parliament. It is this situation which gave birth to the doctrine of judicial independence. Both the Crown and the Parliament realised the significance and the value of an independent judiciary. Yet the English Parliament was not prepared to loosen its grip over the judiciary and it fell to the lot of Chief justice Coke to assert the functional freedom of the judiciary.
When Parliament realised that the Crown was able to assert because of the pleasure doctrine, it enacted the Settlement Act of 1700 whereby security of tenure was provided by making it subject to good behaviour and removal upon address by both Houses of Parliament. Judges’ salaries were to be ascertained and established. Thus the judiciary in England became independent of the Crown as well as the Parliament. But the situation was different in British colonies. Even though the English judiciary secured independence, neither the Crown nor the Parliament was prepared to concede it to the colonies. In 1759 when the Pennsylvania Assembly enacted a law requiring an address of the Assembly for removal of a Judge, the Privy Council disapproved of the measure as an attempt to make the judiciary dependent on the Colonial Assembly.
Since the British Parliament was supreme and could enact a law concerning colonies which would not be subject to court scrutiny, the unrepresented American colonists suspected British intentions. Hence when they attained freedom they favoured total separation of all the three branches of Government so that each would operate as a check on the exercise of power by the other. The American concept of judicial independence, therefore, differs somewhat from the British concept. Our founding fathers were aware of these developments and, as we shall presently show, they steered a middle course.[Supreme Court Advocates-on-Record Association and another Vs Union of India AIR 1994 SC 268]
Categories: Judicial Dictionary